Thursday, April 9, 2015
Jenny E. Carroll (University of Alabama - School of Law) has posted The Jury as Democracy (66 Ala. L. Rev. 825 (2015)) on SSRN. Here is the abstract:
Almost from the moment the law is set to paper, it is shaped and refined through acts of interpretation and discretion. Police and prosecutors choose which cases to investigate, which to charge and how to charge them. Judges make decisions every day that affect the outcome of cases. These acts of interpretation and discretion are driven by the perspectives of those empowered to make them. All too frequently, they reinforce existing power dynamics. But there are other realms of discretion in criminal law. Whether seeking to apply a legal standard as instructed or engaging in an act of nullification, ordinary citizens serving as jurors engage in unique acts of interpretation, redefining the very concept of the law in terms of their own lived experiences and expectations. In this, jurors serve a democratic function that exceeds their minimalist label as “mere fact finders.”
But in this account of the jury, the people who occupy the jury box matter. To imagine the jury as serving this democratic function is inevitably to turn to a conversation about the identities of the men and women who actually serve as jurors. While courts and scholars speak wistfully of a “representative” jury — one that reflects the community from which it is drawn — this conversation remains dissatisfying, as it seeks to compartmentalize discussions of the jury’s function and the jury’s composition.
This Paper rejects the separation, instead examining the question of the jury’s composition in the context of its proposed function. In the process, a more nuanced theory of jury selection emerges — one that recognizes that while a representative jury matters, the question of what that representation is and precisely why it matters shifts as notions of function shift. The function this Paper explores is the critical interpretive role the jury plays within the democratic lawmaking body. Viewed through this lens, one must first confront the question of precisely which community the jury seeks to represent and how it achieves that representation. In a world in which different communities may bear the disproportional burden of lawmaking and application, different communities may have a different stake in the jury itself. If so, the use of geographically defined jurisdictions to produce venire panels may cease to make sense. Likewise, the value of proportional representation on individual juries, while promoting some functions, may undermine the jury’s democratic viability. Specifically, and perhaps ironically, disproportionate representation on individual juries may actually promote the jury’s democratic function. Even more fundamentally the very definitions of “community” and “identity” become fluid in the context of a democratically driven jury that serves as a forum for citizens to constantly realign their own allegiances as they attempt to apply the law to the defendant and so define the law’s limits in their own lives. In shifting this conversation about jury composition, the possibility of the jury as a unique democratic space emerges.